As adult novelties gain wider social acceptance, it becomes more likely that adult novelty businesses will become involved in sexual-harassment litigation. But there are some relatively simple steps you can take (and actions you can avoid) to greatly decrease your business's risk of being caught up in an expensive sexual harassment battle.
1. DON'T ASSUME THE NATURE OF YOUR BUSINESS WILL PROTECT YOU
It's easy to assume that being a sexually oriented business means you can't be sued for sexual harassment. After all, your employees know they will be exposed to sexual items and information at work, so how can they complain about it later? In reality, adult novelty businesses aren't shielded from sexual-harassment claims simply because sex is part of their business. For example, an employee's enthusiasm for discussing adult toys during vendor presentation may quickly turn to discomfort if she is pressed to discuss her personal preferences during her lunch break. In most sexual-harassment cases, the context is at least as important as the content.
2. DO TRY TO HAVE FEWER EMPLOYEES
Under federal anti-discrimination laws and most state laws, employers can only be sued if they have a given minimum number of employees. If your employee count is below the applicable minimum under state and federal law, it is virtually impossible to be sued for sexual harassment.
Of course, you need to hire enough employees to get the work done, but hiring one or two extra employees could have significant legal ramifications. Limiting your employee count, if possible, can be an effective way to reduce-or even-eliminate the risk of sexual-harassment claims.
3. DO CREATE A PAPER TRAIL
Anyone who has spent time around the adult novelty industry would not be surprised by the sexual images and materials the average employee will encounter. However, if one of your employees makes a sexual-harassment claim, you won't end up making your case to industry insiders. What seems mundane to you may be shocking to elderly jury members who will decide whether you are liable for sexual harassment.
The best solution to this problem is to have all new employees sign an acknowledgment stating that they understand the nature of their employment and their job duties. Thus, even if the jury is shocked by what they see and hear about the adult novelty industry, your employees won't be able to believably claim that they were shocked, since it was all set out in the acknowledgment. Done correctly, an acknowledgment could be your best defense against sexual-harassment claims, especially in conjunction with an employee handbook.
4. DON'T ASSUME YOU DON'T NEED AN EMPLOYEE HANDBOOK
Many small and medium-size employers think they don't need or can't afford an employee handbook. In reality, even small employers can benefit from a basic employee handbook that a good employment lawyer can put together for a reasonable price.
At the very least, you should have a clear sexual-harassment policy that describes what type of behavior is unacceptable and has a clear process for reporting sexual harassment. Having a policy is not just a good defense against sexual-harassment claims-it could be your only defense. In some situations, not having a policy could make you strictly liable for harassment you didn't even know about. The benefits of a handbook with a good sexual-harassment policy will easily outweigh the relatively modest cost of creating one.
5. DO MONITOR WHAT GOES ON IN YOUR WORKPLACE
With the exception of restrooms and changing rooms, you have the right to monitor nearly every square inch of your workplace. Video surveillance records can be a valuable source to identify potential sexual-harassment incidents and defend against any claims that might be made.
You also should regularly check the non-public areas of your premises for potentially offensive sexual materials. Extreme sexual imagery or language, especially if it is directed at a specific co-worker, can be the basis for a sexual-harassment claim, even in a sexually oriented business.
Additionally, you should regularly check the hard drives of any company computers that are used by employees. If nothing else, you may discover that your employees are spending a lot of time on activities not related to work. And you may uncover clues to potential harassment, like large amounts of downloaded porn or demeaning and abusive messages between co-workers.
6. DO TAKE ALL REPORTS OF SEXUAL HARASSMENT SERIOUSLY
You should investigate every complaint of sexual harassment, even if you don't believe it or it seems unlikely. At the very least, you should interview any employees who allegedly were involved or witnessed the incident.
Once the investigation is complete, you have to decide what action to take. If sexual harassment occurred, you must take remedial steps to prevent future incidents. This could include firing the offending employee. If sexual harassment did not occur, you should talk to the complaining employee about what is and is not sexual harassment, thus preventing future misunderstandings.
7. DON'T RETALIATE AGAINST EMPLOYEES FOR MAKING REPORTS
The law protects employees who make good-faith complaints about sexual harassment, even if those complaints are mistaken. In fact, the penalties for retaliating against an employee for making an honest but wrongheaded complaint can be even more severe than the penalties that result from actual harassment. Although there is a natural urge to protect employees who have been wrongfully accused, you should avoid letting that urge cause you to punish a misguided accuser.
8. DON'T FORGET ABOUT YOUR CUSTOMERS
Because of the nature of the adult novelty business, some people may assume they can engage in unacceptable, unwelcome conversations, and behavior aimed at your employees. You are required to protect your employees from sexual harassment, even if it comes from customers, vendors, sales representatives, or another third party over whom you have no direct control.
If you become aware of an incident of third-party harassment, you must take reasonable steps to protect the employee from future incidents. What constitutes "reasonable steps" depends on the circumstance, but it could range from confronting the harasser to barring the offender from your premises.
This article is for informational purposes only and should not be considered legal advice. Specific legal issues should be discussed with qualified legal counsel.
Brent Dyer practices labor and employment law and general litigation with Looper, Reed and McGraw in Dallas, Texas. He is an advocate for sexually oriented businesses' rights to operate under the Constitution and be subject only to reasonable regulations like those that apply to other industries. Visit AdultNoveltyLaw.com to read his blog.
